{ "id": 6141235, "name": "William CROW v. WEYERHAEUSER COMPANY", "name_abbreviation": "Crow v. Weyerhaeuser Co.", "decision_date": "1994-07-06", "docket_number": "CA 93-744", "first_page": "295", "last_page": "302", "citations": [ { "type": "official", "cite": "46 Ark. App. 295" }, { "type": "parallel", "cite": "880 S.W.2d 320" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "38 Ark. App. 6", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136067 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0006-01" ] }, { "cite": "Ark. Code Ann. \u00a7 11-9-704", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "pin_cites": [ { "page": "(c)(l)" }, { "page": "(c)(3)" } ], "opinion_index": 0 }, { "cite": "38 Ark. App. 248", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140907 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/38/0248-01" ] }, { "cite": "45 Ark. App. 144", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6656350 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark-app/45/0144-01" ] }, { "cite": "41 Ark. App. 57", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137154 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/41/0057-01" ] }, { "cite": "42 Ark. App. 168", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139410 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark-app/42/0168-01" ] }, { "cite": "40 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137880 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0108-01" ] }, { "cite": "40 Ark. App. 94", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137710 ], "weight": 3, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/40/0094-01" ] }, { "cite": "Ark. Code Ann. \u00a7 1", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "opinion_index": 0 }, { "cite": "38 Ark. App. 248", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140907 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark-app/38/0248-01" ] }, { "cite": "40 Ark. App. 94", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137710 ], "weight": 2, "year": 1992, "opinion_index": 1, "case_paths": [ "/ark-app/40/0094-01" ] } ], "analysis": { "cardinality": 647, "char_count": 13949, "ocr_confidence": 0.86, "pagerank": { "raw": 8.724443257361318e-08, "percentile": 0.493849062242625 }, "sha256": "27e9c4b9ab41c0adc69d633565d03f745fce2a1aa48c9c158343731e6186c081", "simhash": "1:21c3c4850cb8e9e5", "word_count": 2222 }, "last_updated": "2023-07-14T21:17:20.155315+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Jennings, C.J., concurs.", "Mayfield, \"J., dissents." ], "parties": [ "William CROW v. WEYERHAEUSER COMPANY" ], "opinions": [ { "text": "Judith Rogers, Judge.\nThis is an appeal from the Workers\u2019 Compensation Commission\u2019s decision finding that appellant failed to prove by a preponderance of the evidence that he was entitled to receive permanent partial disability benefits. On appeal, appellant contends that the Commission erred in its interpretation and application of Ark. Code Ann. \u00a7 1 l-9-704(c)(l) (Supp. 1993) and that the Commission erred in not considering new evidence. We disagree on both points and affirm.\nThe record reflects that appellant sustained a compensable injury in the course and scope of his employment with appellee on November 28, 1989. According to appellant, he was attempting to separate two kiln trucks, when he felt a sensation which he testified \u201cfelt like somebody had thumped him in the right testicle.\u201d Appellee accepted appellant\u2019s injury as compensable. Dr. Dale Gullett examined the appellant and could not determine the source of appellant\u2019s pain. Dr. Gullett referred appellant to Dr. John Hearnsberger. Dr. Hearnsberger discovered an inguinal hernia and operated to repair it. Appellee paid for the cost of the surgery to repair appellant\u2019s hernia. After the surgery, the appellant continued to complain of pain and was off work drawing temporary total disability benefits. Six weeks after appellant\u2019s surgery, appellee ceased payment of temporary total disability benefits.\nAppellant filed a claim for additional benefits contending that he was entitled to permanent partial disability benefits based upon a ten percent rating by Dr. John R. Gregory. Appellee controverted any additional benefits other than those paid for the work-related hernia. The administrative law judge denied benefits. The Commission reviewed the case and denied benefits and appellant\u2019s request for the Commission to consider newly discovered evidence.\nAppellant appealed the Commission\u2019s decision. We issued an unpublished opinion on December 23, 1992, remanding the case for the Commission to reconsider its decision in light of our recent opinion in Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992). The Commission reconsidered the case in light of Keller, and again denied benefits. This appeal followed.\nWhere the Commission\u2019s denial of relief is based on the claimant\u2019s failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission\u2019s opinion displays a substantial basis for the denial of relief. Moser v. Arkansas Lime Co., 40 Ark. App. 108, 842 S.W.2d 456 (1992). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission\u2019s conclusion, we must affirm its decision. Cagle Fabricating & Steel, Inc. v. Patterson, 42 Ark. App. 168, 856 S.W.2d 30 (1993). In conducting our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. CDI Contractors v. McHale, 41 Ark. App. 57, 848 S.W.2d 941 (1993). The Commission also has the duty of weighing the medical evidence as it does any other evidence, and resolving any conflict is a question of fact for the Commission. Chamberlain Group v. Rios, 45 Ark. App. 144, 871 S.W.2d 595 (1994). However, the Commission is not bound by medical opinion, although it may not arbitrarily disregard the testimony of any witness. It is also entitled to examine the basis for a doctor\u2019s opinion in deciding the weight to which that opinion is entitled. Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992).\nAppellant argues that the Commission erred in its interpretation and application of Ark. Code Ann. \u00a7 ll-9-704(c)(l) (Supp. 1993), contending that the Commission construed the statute strictly by requiring the determination of the existence of an \u201cabnormality.\u201d We disagree.\nArkansas Code Annotated \u00a7 ll-9-704(c)(l) provides in part that \u201cany determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.\u201d The Commission found that appellant failed to present objective medical evidence to support his claim, as required by Ark. Code Ann. \u00a7 1 l-9-704(c)(l). The Commission explained that in considering claims for permanent partial disability the first determination is:\n[WJhether the evidence shows the presence of an abnormality which could reasonably be expected to produce the permanent physical impairment alleged by the injured worker. Then, if we determine that an abnormality has produced a permanent physical impairment, we must also evaluate the evidence to determine the extent of the impairment. With regard to both of these determinations, Ark. Code Ann. \u00a7 ll-9-704(c)(l) (1987) provides that \u2018[a]ny determination of-the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings.\u2019 Therefore, Ark. Code Ann. \u00a7 11-9-704(c)(l) provides a specific element of proof which must be found before the Commission can find the existence or extent of a permanent physical impairment.\n(Emphasis added.) After considering this case in light of Keller v. L.A. Darling Fixtures, supra, the Commission determined that there was no objective and measurable findings to support a finding of the existence of an impairment.\nThe record contains an extensive medical history of examinations and treatments by at least six doctors, including an orthopedic physician and three other specialists, none of whom could propose an explanation for the source or cause of appellant\u2019s pain. After appellant\u2019s hernia repair, Dr. Hearnsberger\u2019s records indicate that appellant was complaining of \u201crecurrent pain\u201d which appellant maintained was \u201cexactly the same pain he had prior to his operation.\u201d Consequently, Dr. Hearnsberger concluded that the hernia was not the cause of the pain appellant began experiencing in November of 1989. Dr. Hearnsberger\u2019s report on February 19, 1990, indicates that he was unable to determine the source of appellant\u2019s pain.\nThe record also reflects that appellant was examined by Dr. T. M. O\u2019Gorman, a urologist, on April 13, 1990. Dr. O\u2019Gorman noted that he could \u201cfind absolutely no abnormality of the [right] testicle\u201d and that the testicle was not tender to palpation. Appellant was also referred to Dr. John R. Gregory, an orthopedic physician. Dr. Gregory performed an x-ray, a myelogram, a CT scan, an MRI, and a diskogram. All of these tests revealed normal findings. It appears from the evidence presented that the only source of information for Dr. Gregory\u2019s evaluation and his determination of a ten percent permanent partial disability rating is the appellant\u2019s complaint of pain and appellant\u2019s response of being in pain during the functional evaluation test.\nAppellant and his wife testified that appellant had no significant physical problems prior to the incident on November 28, 1989. However, the evidence presented shows that appellant sought treatment from Dr. Mark Floyd, his regular physician, on October 19, 1989, for complaints of right testicular and groin pain. Appellant also testified on January 4, 1991, that he continued to feel a burning and throbbing sensation in his right testicle. According to appellant, he was never free of pain and physical activity exacerbates the pain. However, the record indicates that since September of 1990, appellant has been employed driving a truck ten to twelve hours a day, five to six days a week. The record also reflects that the recurrence of appellant\u2019s pain occurred shortly after a dispute arose between appellant and appellee because appellant\u2019s temporary total disability had been discontinued after he was observed driving a log truck and unbinding his load.\nThe Commission reviewed the case in light of Keller and determined that appellant failed to prove that he sustained a permanent physical impairment. The Commission emphasized that there was no objective evidence in the record to prove the existence of any underlying damage which would substantiate appellant\u2019s complaints of pain. The Commission noted that appellant had been performing work after his hernia repair; therefore, it is implicit from the Commission\u2019s opinion that it found appellant\u2019s complaints of constant pain unbelievable. After reviewing all the evidence in the record, we cannot say that there is no substantial basis for the Commission\u2019s denial of permanent partial disability benefits.\nThe dissent appears to agree with the appellant that the use of the word \u201cabnormality\u201d establishes an additional requirement under Ark. Code Ann. \u00a7 ll-9-704(c). We do not think that this assumption is correct. The Commission chose to use the word \u201cabnormality\u201d to reflect an underlying cause producing the appellant\u2019s alleged pain. Arkansas Code Annotated \u00a7 ll-9-704(c) requires that any determination of the existence of a physical impairment shall be supported by objective and measurable findings. Although the Commission chose to use the medical term \u201cabnormality\u201d in describing the existence of an impairment, it did not establish an additional requirement under Ark. Code Ann. \u00a7 ll-9-704(c).\nAppellant also argues that the Commission erred by not considering newly discovered evidence, specifically a report by Dr. John Bomar, a chiropractor. Whether to remand for taking additional evidence is a determination within the Commission\u2019s discretion; on appeal an exercise of that discretion will not be lightly disturbed. Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). A case should be remanded only if the newly discovered evidence is relevant, is not merely cumulative, would change the result, and was diligently discovered and produced by the movant. Id. In our unpublished opinion remanding this case back to the Commission, we stated that appellant could renew his request for reconsideration of Dr. Bomar\u2019s report. The record reflects that appellant did not renew his request; therefore, we decline to address this issue.\nAffirmed.\nJennings, C.J., concurs.\nMayfield, \"J., dissents.\nWhile not applicable to the case before us, we note that Ark. Code Ann. \u00a7 11-9-704(c)(3) was amended in 1993. The amendment substituted the word \u201cstrictly\u201d for the word \u201cliberally\u201d and became effective on July l, 1993.", "type": "majority", "author": "Judith Rogers, Judge." }, { "text": "John E. Jennings, Chief Judge,\nconcurring. I do not agree that the Commission decided this case on the basis of Ark. Code Ann. \u00a7 ll-9-704(c)(l), but I concur in the result reached by the majority.\nMelvin Mayfield, Judge, dissenting. This matter was here before and was remanded to the Commission by an unpublished opinion dated December 23, 1992. That opinion stated that the case was remanded to be reconsidered in light of this court\u2019s opinion in Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992), as to the meaning of the \u201cobjective and measurable\u201d requirement contained in Ark. Code Ann. \u00a7 ll-9-704(c) (Supp. 1991).\nIt is my position that the Commission did not comply with the mandate of our previous opinion. I do not address the question of what the ultimate decision of the Commission should be \u2014 nor am I concerned with whether our decision in Keller was right or wrong. It is my position that under the doctrine of the law of the case, the Commission must decide this case under the rules, definitions, and findings made by our opinion in Keller so far as the \u201cobjective and measurable\u201d requirements are concerned. The Commission, however, held:\nAllegations about the intensity and persistence of pain or other symptoms may be considered only if medical signs and laboratory findings show the presence of an abnormality which could reasonably be expected to produce the pain or other symptoms alleged.\nBy requiring the presence of an \u201cabnormality\u201d in order to have objective and measurable findings, the Commission injected an element into the equation not authorized by the Keller opinion. In fact, I am shocked by the Commission\u2019s constant and consistent use of the word \u201cabnormality.\u201d In the appellant\u2019s abstract of the Commission\u2019s opinion \u2014 an abstract to which the appellee makes no objection \u2014 the word \u201cabnormality\u201d appears a total of 24 times in the 22-page abstract. In contrast, I have been unable to find that word \u2014 not even one time \u2014 in the Keller opinion. It is hard to understand how the Commission could use that word 24 times while considering this case in the light of the Keller opinion which did not use the word even one time..\nSo, the Commission departs from our decision in Keller, where we quoted from our decision in Reeder v. Rheem Manufacturing Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992), the holding that, \u201cThe statute precludes an award for permanent disability only when it would be based solely on subjective findings.\u2019\u201d Actually, the Commission\u2019s opinion quotes that statement, citing both Keller and Reeder as its source, but has added the word \u201cabnormality\u201d to the language of Keller and Reeder. Not only is the word added, but the concept is changed. The Commission is equating the concept of \u201cbased solely on subjective findings\u201d with the requirement of \u201cthe presence of an abnormality.\u201d I submit, however, that precluding an award for permanent disability \u201cbased solely on subjective findings\u201d is not the same as precluding such an award unless the \u201cpresence of an abnormality sufficient to produce the pain alleged\u201d is demonstrated.\nTherefore, because the Commission did not follow our decision in Keller as directed by us in our remand of the instant case, I would again remand for the Commission to make a decision in keeping with Keller.", "type": "concurrence", "author": "John E. Jennings, Chief Judge," } ], "attorneys": [ "Wright, Chaney, Berry & Daniel, P.A., by: Don P. Chaney, for appellant.", "Wright, Lindsey & Jennings, for appellee." ], "corrections": "", "head_matter": "William CROW v. WEYERHAEUSER COMPANY\nCA 93-744\n880 S.W.2d 320\nCourt of Appeals of Arkansas En Banc\nOpinion delivered July 6, 1994\nWright, Chaney, Berry & Daniel, P.A., by: Don P. Chaney, for appellant.\nWright, Lindsey & Jennings, for appellee." }, "file_name": "0295-01", "first_page_order": 325, "last_page_order": 332 }